Everdell v. Carroll

336 A.2d 145, 25 Md. App. 458, 1975 Md. App. LEXIS 544
CourtCourt of Special Appeals of Maryland
DecidedApril 3, 1975
Docket478, September Term, 1974
StatusPublished
Cited by8 cases

This text of 336 A.2d 145 (Everdell v. Carroll) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Everdell v. Carroll, 336 A.2d 145, 25 Md. App. 458, 1975 Md. App. LEXIS 544 (Md. Ct. App. 1975).

Opinion

Menchine, J.,

delivered the opinion of the Court.

Time was that the private lane commencing at Tilghman’s Neck Public Road (now DeCoursey Thom Road) served without incident the 590 acre tract through which it ran to the farthest reaches of the land. Nor was its course impeded, save by farm buildings that forced in part a snake-like course, by intersecting lanes and by 90 degree turns. While the tract was singly owned, its users traversed the lanes in seeming harmony, their free passage unobstructed by gates, the speed of their travel limited only by the caution induced by its described design, by the screening effect of natural and planted trees and shrubs and by the signs posted by its owners to indicate its hazards. Unhappily, this harmony, this heaven’s first law, changed to discord when the owners of the entire tract disposed of parts of the estate.

The entire tract, known as Blakeford Farm, had been in the ownership of Clarence W. Miles and wife (Miles). The southern and western borders of Blakeford Farm, in Queen Anne’s County, Maryland, extended to the waters of Queenstown Creek and of the Chester River, respectively. By deed dated March 13, 1958, Miles conveyed to Potter a tract *460 of 18.113 acres situate and lying at the actual confluence of the two bodies of water at the southwest corner of the whole tract. That deed contained the following clauses:

“TOGETHER with the buildings and improvements thereupon erected, made and being, and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and TOGETHER WITH the right of ingress to and egress from the above described property in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman’s Neck Public Road into and through the farm building area of Blakeford Farm, and thence by a farm lane to the northerly end of a twenty-foot Right-of-Way surveyed by Shew & Bartlett on July 29, 1957, and thence by said twenty-foot Right-of-Way to the land hereinabove decribed and hereby conveyed.” 1

On June 15, 1970 Potter conveyed the entirety of the 18.113 acre tract to the appellant, William Everdell (Everdell). The latter deed contained the following clause:

“TOGETHER with the buildings and improvements thereupon erected, made or being and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and especially together with the right of ingress to and egress from the above described property in common with Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman’s Neck Public Road by the route fully described in said deed; * * * ”

*461 It was purchased at a cost of $185,000.00.

On June 30, 1970 Miles conveyed to appellee, John Lee Carroll 2 (Carroll) a 266.256 acre tract from the remaining acreage. That deed contained the following clauses:

“* * * TOGETHER with a perpetual easement of ingress and egress at all times by all means and for all purposes, upon, over and across the existing entrance lane thirty (30) feet wide leading from the public road now known as the DeCoursey Thom Road, formerly known as the Tilghman’s Neck Public Road in a generally southerly direction to the real estate hereinabove described and hereby conveyed, in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their heirs and assigns.
SUBJECT NEVERTHELESS to the legal effect of the easements granted to Virginia B. Potter, her heirs and assigns, by the said Clarence W. Miles and Eleanor A. Miles, his wife, by deed dated March 13, 1958, and recorded among said land records in Liber T.S.P. No. 40, folio 23; * * *.”

The Carroll tract enveloped all land boundaries of the Everdell tract, extending from Queenstown Creek to the Chester River.

The previously recited clause in the deed from Miles to Potter, coupled with that in the subsequent deed from Potter to Everdell, had the legal effect of making the remaining property of Miles and ergo, the property of Carroll, servient to the dominant right of Everdell to the extent of the interest thereby created and conveyed. Desch v. Knox, 253 Md. 307, 310, 252 A. 2d 815, 817.

In the subject litigation Everdell, owner of the dominant estate, sought to enjoin Carroll, owner of the servient estate, from maintaining allegedly unlawful obstructions within *462 the right-of-way. The answer of Carroll admitted placement of “bumps” and barriers along the lane, but maintained in substance that they did not impinge upon Everdell’s reasonable use of the lane and were within Carroll’s dominion as reasonably necessary for his enjoyment of the fee through which the lane ran. The answer also alleged that Everdell was estopped to seek injunction because he had made “representations that he would join in such experimentation.” Carroll also filed a counterclaim, alleging agreement by Everdell to relocate the 20 foot right-of-way leading from the Everdell property to the east-west leg of the farm lane. The trial court denied Everdell’s claim for injunction and dismissed Carroll’s counterclaim.

Although both Everdell and Carroll entered appeals from the decree of the trial court, the brief of Carroll declares: “The denial of the Counterclaim is not a subject of this appeal.” Such denial will, accordingly, not be considered in this opinion.

We hold that the recited clause in the deed from Miles to Potter, supra, granted a right-of-way only. The deed evidenced a clear intent to retain in Miles such other rights or benefits of his fee simple estate as were not inconsistent with such grant.

In 1829 it was declared in Bosley v. Susquehanna Canal, 3 Bland 63, 67:

“A right of way, whether public or private, is essentially different from a fee simple right to the land itself over which the way passes. A right of way is nothing more than a special and limited right of use; and every other right or benefit derivable from the land, not essentially injurious to, or incompatible with the peculiar use called the right of way, belongs as absolutely and entirely to the holder of the fee simple as if no such right of way existed. He is, in fact, for every purpose considered as the absolute owner of the land, subject only to an easement or servitude; he may recover the land so charged by ejectment; he may *463 bring an action of trespass against any one who does any injury to it, not properly incident to an exercise of the right of way; he has a right to the trees growing upon it; to all minerals under its surface; he may carry water in pipes under it; and the freehold with all its profits, not inconsistent with the right of way, belong to him.”

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Bluebook (online)
336 A.2d 145, 25 Md. App. 458, 1975 Md. App. LEXIS 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everdell-v-carroll-mdctspecapp-1975.